Yesterday the High Court of Australia allowed three appeals from a decision of the NSW Court of Criminal Appeal (NSW CCA) regarding the correct interpretation of section 45 of the Crimes Act 1900 (NSW), concerning female genital mutilation.
See The Queen v A2; The Queen v Magennis; The Queen v Vaziri [2019] HCA 35, available on AUSTLII.
NSW CCA
The NSW CCA had previously allowed appeals against convictions on the ground that the trial judge had erred in his directions to the jury as to the meaning of the terms “otherwise mutilates” and “clitoris” in s 45(1)(a). The CCA had concluded that the word “mutilates” should be given its ordinary meaning, requiring some imperfection or irreparable damage to have been caused. The CCA had also held that the term “clitoris” does not include the clitoral hood or prepuce. The CCA allowed the appeals on various other grounds, including that the jury’s verdict was unreasonable or unsupported by the evidence.
High Court
Special leave was granted. A majority of the Court held that the term “otherwise mutilates” in s 45(1)(a) does not bear its ordinary meaning, but has an extended meaning that takes account of the context of female genital mutilation, and which encompasses the cutting or nicking of the clitoris of a female child. The purpose of s 45, evident from the heading to the provision and the extrinsic materials, is to criminalise the practice of female genital mutilation in its various forms. A majority of the Court also held that the term “clitoris” in s 45(1)(a) is to be construed broadly, having regard to the context and purpose of s 45. It followed that the trial judge did not misdirect the jury as to the
meaning of either of these terms.
See the three separate judgments of:
- Kiefel CJ & Keane J
- Nettle & Gordon JJ
- Edelman J.
The minority view of Bell & Gageler JJ would have seen the appeals dismissed (see [146]).
Orders made
The appeals having been allowed, the matters have been remitted to the NSW CCA for determination of the ground of appeal alleging that the jury’s verdict was unreasonable or unsupported by the evidence, in light of the proper construction of s 45(1)(a).
More information
The full summary of the matter, from which this note is drawn, is available on the High Court website.